Falcon Coal Co., Inc. v. Clemons

Citation873 F.2d 916
Decision Date26 April 1989
Docket NumberNo. 88-3235,88-3235
PartiesFALCON COAL COMPANY, INC., Petitioner, v. Corbett CLEMONS, et al., Respondents.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Ronald E. Gilbertson, argued, Kilcullen, Wilson & Kilcullen Chartered, Washington, D.C., for Falcon Coal Co., Inc.

Michael A. Stidham, Miller, Stidham & McGrath, Jackson, Ky., for Corbett Clemons.

Michael J. Denney, argued, U.S. Dept. of Labor, Office of the Solicitor, Washington, D.C., for Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor.

Before KRUPANSKY and WELLFORD, Circuit Judges, and JOINER, Senior District Judge. *

WELLFORD, Circuit Judge.

This black lung case involves the interesting question of whether a night watchman at a strip mine is a "miner" as defined in the Black Lung Benefits Act. Three cases examining this issue have held that watchmen are not miners under the circumstances demonstrated. The panel believes that the regulations support this conclusion. We therefore reverse the Benefits Review Board, which decided this claim to the contrary, and remand for further proceedings consistent with this opinion. Disposition of other issues is settled by the resolution of this question.

On October 3, 1979, Corbett Clemons, petitioner, filed an application for federal black lung benefits in which he stated that he "stopped work in coal mining in 1947." 1 On July 17, 1980, a Department of Labor Deputy Commissioner issued a Notice of Initial Determination, in which the petitioner was found eligible for benefits under the Black Lung Benefits Act. Falcon Coal Company was named as the party responsible for benefit payments. Falcon protested this initial determination and requested a de novo hearing before an Administrative Law Judge (ALJ).

Petitioner's testimony was taken by deposition, and the ALJ awarded benefits, finding that Clemons "worked as a night watchman for a surface (strip) mine operated by the employer for the last six years (1971-1977)." The ALJ also found that prior to Clemons' employment with Falcon, he had worked for approximately ten years (1961-1970) as a night watchman or security guard for another coal company. In addition to his security work, Clemons was found to have worked in the coal industry for approximately four years in various other jobs, some of which were above ground and others of which were in the mines.

With regard to Clemons' employment at Falcon, the ALJ found that Clemons patrolled the grounds in a truck, and was thereby exposed to coal dust. But, the ALJ also noted that "[d]uring the entire period of his coal mine employment, claimant was a heavy cigarette smoker." Specifically, the judge found that Clemons had a habit of smoking at least one pack of cigarettes per day for a period of some thirty to thirty-five years, despite his complaints about pneumoconiosis.

The ALJ concluded that Clemons was entitled to invoke the interim presumption of total disability due to pneumoconiosis arising out of coal mine employment on the basis of qualifying evidence under 20 C.F.R. Sec. 727.203(a)(1)-(a)(4). Having invoked the interim presumption, the ALJ next considered the issue of rebuttal under 20 C.F.R. Sec. 727.203(b)(3). The ALJ recognized that Clemons suffered from emphysema, and that black lung benefits are not provided for that disease, but only for pneumoconiosis. The ALJ, however, rejected the medical opinions of Drs. Anderson, O'Neill, and Cornish, who attributed claimant's respiratory impairment to cigarette smoking. The ALJ recognized that these three doctors all had extensive experience in diagnosing and treating respiratory and pulmonary diseases, but found that they had not properly considered claimant's twenty-year exposure to coal dust. The opinions of other doctors, who found a significant relationship between the claimant's total disability and his twenty years of "coal mine work," were adopted. Weighing the evidence, the ALJ determined that the interim presumption had not been rebutted, and benefits were awarded.

Falcon appealed the ALJ's decision to the Benefits Review Board, claiming that work as a night watchman did not qualify as work of a "miner" under the Black Lung Benefits Act. Falcon also challenged whether the final Part 718 regulations must be applied under the circumstances; whether it had effectively rebutted the presumption under 20 C.F.R. Sec. 727.203(b)(3); and whether the ALJ erred in finding benefits and interest payable from April 1979. 2

The Board affirmed the ALJ's finding that the claimant's job as a night watchman qualified as the work of a "miner" under the Act. The majority of the Board held that the Part 727 regulations, rather than the Part 718 regulations, were applicable. The majority also found that the ALJ's award of benefits was supported by substantial evidence, but modified the on-set date for benefits to October rather than April of 1979. Finally, the Board rejected Falcon's argument that interest is not payable until thirty days after the issuance of the Deputy Commissioner's initial determination.

One Board member dissented, indicating that in his view the claimant was not a "miner" for the period that he worked as a night watchman. He concluded that, as a matter of law, the position of night watchman does not constitute the work of a miner as defined in Sec. 402(d) of the Act and the applicable regulations, 20 C.F.R. Sec. 725.202(a).

Falcon filed a timely motion for en banc reconsideration by the Board on the issue of whether Clemons' work as a night watchman qualified as work of a "miner" under the Black Lung Benefits Act. The Board issued a split decision, in which three members affirmed the Board's original holding that "although all night watchmen might not be coal miners under the Act, under the particular facts of this case, the Administrative Law Judge could properly find that claimant's work was integral to and facilitated the production of coal." Two members dissented, stating that Clemons did not satisfy the "function" prong of the definition of the term "miner." Falcon appeals this en banc decision of the Board.

Falcon's records indicate that Clemons was employed as a night watchman at their surface mine from September 30, 1970 through September 16, 1979. He was fifty-four years old at the time he ceased employment at Falcon. Clemons' testimony confirmed that this employment at Falcon consisted exclusively of work as a night watchman. He testified that sometimes conditions were dusty while at other times "there wasn't very much dust." He worked inside a guardhouse provided for him, but claimed to spend some time outside on the strip mine or driving his truck around the site. Because Clemons worked the night shift, the mine was not always in operation. The ALJ found, however, that the mine was in operation the majority of the time that Clemons was at work.

Clemons testified that he smoked cigarettes for many years. He rolled his own cigarettes and stated that "a can of Prince Albert would last almost a week." 3 Clemons admitted that he continued to smoke until 1982 (long after he applied for benefits), when he was hospitalized for breathing and heart problems.

Dr. P. Sewell examined Clemons on September 20, 1979. Sewell noted claimant's shortness of breath and his indicated employment of nineteen years as a night watchman and "a three (3) year history of coal mining." Dr. Sewell failed to mention the claimant's smoking history in his report. Sewell diagnosed Clemons as suffering from pneumoconiosis, and concluded that Clemons would be unable to work as a consequence of occupational lung disease. At a deposition conducted on June 25, 1980, Sewell reiterated his findings of pneumoconiosis, but once again failed to acknowledge claimant's cigarette smoking history.

Dr. A. Varghese examined Clemons on November 15, 1979, and noted claimant's employment as a laborer and night watchman in the coal mines, as well as claimant's reported forty-year smoking history. Varghese diagnosed "possible pneumoconiosis" and indicated that it was "possible" that the condition arose out of coal mine employment. His report was inconclusive.

Dr. T. Boneta, a general surgeon who examined Clemons on March 5, 1980, performed a physical examination and also obtained an x-ray, which was interpreted by Dr. Cordero and himself. A spirometry test was not performed. Dr. Boneta diagnosed Clemons as suffering from stage 3 pneumoconiosis and emphysema due to pneumoconiosis. Dr. Boneta's medical records indicate that Clemons reported working at a strip mine for approximately twenty years and being exposed to coal dust. As in the case of Dr. Sewell, Dr. Boneta reflected no knowledge of the claimant's long history of smoking, although Clemons admitted the habit during the examination.

Dr. B. Wright, an anesthesiologist, examined Clemons on July 16, 1980. He reported that Clemons complained of severe shortness of breath, and indicated a habit of smoking one pack of cigarettes a day for thirty-five years. Dr. Wright conducted a physical examination, a chest x-ray, and pulmonary function studies, all of which indicated to him "chronic obstructive pulmonary disease, predominantly emphysematist type associated with smoking and inhalation of respirable dust, severe"; simple pneumoconiosis; and hypertension. Dr. Wright was of the opinion that the claimant's impairment may have been partially due to coal dust exposure, but that his smoking history and hypertension were contributing factors to his symptoms.

Dr. R. O'Neill examined petitioner on April 2, 1980. The history reported by Clemons was that he worked as a strip mine watchman for 20 years, an underground coal miner for five years, and had a habit of smoking approximately one pack of cigarettes a day. Dr. O'Neill reported that Clemons advised him that he had quit smoking prior to the examination, which included a physical, a chest x-ray, and a...

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